Relist (and Hold) Watch

Posted Wed, November 16th, 2011 1:45 pm by John Elwood

Putting aside Monday’s fireworks on the health care front, this week’s order list was relatively quiet. The Court did grant cert. in the survivor benefits case Astrue v. Capato, 11-159, relisted after the November 4 Conference and discussed last week. And after taking an extra week to mull over a late-filed supplemental brief, the Court doled out a GVR in the once-relistedBranch Banking and Trust v. Gordon, 11-282, in light of the Court’s decision last Term in AT&T Mobility Corp. v. Concepcion, 09-893.

The Court relisted for the first time since calling for a response in Fisher v. U.S. District Court for the Northern District of Texas, 10-1518, which presents the question whether a crime victim seeking to enforce a right under the Crime Victims’ Rights Act is entitled to ordinary appellate review of a district court’s disposition of his claims, or only more limited mandamus review for clear and indisputable error. The Court likely relisted Fisher to consider it together with Amy v. Monzel, 11-85, scheduled for the November 22 Conference. In addition to the standard-of-review question also at issue in Fisher, Amy presents another question, and alleges another circuit split, about the role of proximate cause in restitution awards for victims of child pornography.

The Court also relisted for the first time in Dallas v. L.J., 11-109, a state-on-top petition from the Fourth Circuit in which Maryland seeks relief from a twenty-two-year-old consent decree that governs substantial aspects of the state’s foster care system. The state presents two questions: (1) whether the district court erred in denying relief under Federal Rule of Civil Procedure 60(b)(5) on the ground that an underlying decision was not “dead wrong,” despite “sensitive federalism concerns” and changes in underlying law since the entry of the consent decree; and (2) whether a federal court may enter and enforce a wide-ranging injunction based on a single state-plan element of the Adoption Assistance and Child Welfare Act of 1980.

The Court also relisted in Davis v. United States, 11-5323, another in the group of petitions discussed last week that the Court is collecting for the November 22 Conference along with Hill v. United States, 11-5721, all addressing whether the Fair Sentencing Act (which reduced the crack-powder sentencing differential) applies in an initial sentencing proceeding that takes place on or after the statute’s effective date if the offense occurred before that date. As noted last week, it seems all but certain the Court will grant cert. in one of these cases.

On the hold front, it appears the Court is holding Thomas More Law Center v. Obama,11-117, and Liberty University v. Geithner,11-438, for the other health care cases granted on Monday. As Lyle mentioned here, Liberty University addresses a provision of the Affordable Care Act not at issue in the other cases, which requires large private-sector employers to assure adequate health coverage for their full-time workers.

In other housekeeping matters, the Court called for the record in Floyd v. Cain, 11-5987, originally set for the November 22 Conference. Floyd appears to involve another Brady claim from the beleaguered New Orleans District Attorney’s Office, as in Smith v. Cain, 10-8145, argued on November 8. It may give them another opportunity to consider whether to confess error. The Court also appears to have released several routine holds, GVRing in Stovall v. Miller, 10-851, and McEwen v. Thompson, 11-305,in light of last week’s decision in Greene v. Fisher, 10-637.

If a case has been relisted once, it generally means the Court is paying close attention, increasing the chance of a grant. But once a case has been relisted more than twice, it is generally no longer a likely candidate for plenary review, and is more likely to result in a summary reversal or a dissent from the denial of cert.

Fisher v. U.S. District Court for the Northern District of Texas (relisted after the 11/10 Conference)

Issue(s): Under 18 U.S.C. § 3771(d)(3), a crime victim seeking to enforce a right under the Crime Victims’ Rights Act may petition the court of appeals for a writ of mandamus. Does this provision entitle crime victims to ordinary appellate review of their claims instead of only limited mandamus review for clear and indisputable error?

Issue(s): (1) Whether a court misapplies the flexible standard demanded by Rule 60(b)(5) when it subordinates “sensitive federalism concerns” implicated by a long-running institutional-reform decree to the court’s insistence that its previous decisions must be “dead wrong” before a state may obtain relief based on changes in the governing law; and (2) whether a federal court lacks power to enter and enforce a wide-ranging injunction based on a single state-plan element of the Adoption Assistance and Child Welfare Act of 1980, which makes federal funding conditional on a requirement that the state plan include certain elements to “gain the approval of” the Secretary of the federal Department of Health and Human Services.

Issue(s): Whether the court of appeals violated 28 U.S.C. § 2254 and Supreme Court precedent by overriding state court determinations of law and fact and awarding habeas relief based on a constitutional rule that this Court has never recognized and that the Seventh Circuit derived entirely from its own precedent.

Issue(s): (1) Whether, under 28 U.S.C. § 2254, a federal court may grant habeas relief on a claim that the state-court conviction rested on perjured testimony absent proof that the prosecution knew that the challenged testimony was false and when the state post-conviction court deemed the testimony truthful; (2) whether, under 28 U.S.C. § 2254, a federal court may grant habeas relief on a claim alleging suppression of exculpatory evidence when that evidence was unknown to law enforcement officials working on the case and without considering whether the state court might have rejected this claim.

Merits Case Pages and Archives

On Monday, the justices met for their September 25 conference. The justices removed Trump v. International Refugee Assistance Project and Trump v. Hawaii from the court's October sitting. We expect orders from this conference on Thursday. The October 2017 term will begin on Monday, October 2. The calendar for the October sitting is available on the court's website.

Major Cases

Trump v. International Refugee Assistance Project(1) Whether respondents’ challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780 is justiciable; (2) whether Section 2(c)’s temporary suspension of entry violates the Establishment Clause; (3) whether the global injunction, which rests on alleged injury to a single individual plaintiff, is impermissibly overbroad; and (4) whether the challenges to Section 2(c) became moot on June 14, 2017.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of September 25, 2017

Collins v. Virginia Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Butka v. Sessions Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.

National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

On August 16, Judge Jon Newman of the U.S. Court of Appeals for the 2nd Circuit gave a lecture, “The Supreme Court — Then and Now,” in which he compared the Supreme Court today to the court in October Term 1957, when Newman served as a law clerk to Chief Justice Earl Warren.